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The Insanity Defense: Conceptual Confusion and the Erosion of Fairness, 67 Marq

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The Insanity Defense: Conceptual Confusion and the Erosion of Fairness, 67 Marq Marquette Law Review Volume 67 Article 2 Issue 1 Fall 1983 The nsI anity Defense: Conceptual Confusion and the Erosion of Fairness Wallace A. MacBain Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Wallace A. MacBain, The Insanity Defense: Conceptual Confusion and the Erosion of Fairness, 67 Marq. L. Rev. 1 (1983). Available at: http://scholarship.law.marquette.edu/mulr/vol67/iss1/2 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW Volume 67 Fall 1983 No. 1 THE INSANITY DEFENSE: CONCEPTUAL CONFUSION AND THE EROSION OF FAIRNESS WALLACE A. MACBAIN* I. INTRODUCTION The insanity defense is in serious trouble.1 This article will examine one of the main causes of its peril: a habitual failure to come to terms with the meaning and implications of "mens rea" and its relation to "guilt" and "responsibil- ity." While reviewers have given ample consideration to the insanity defense, there has not been sufficient concern for the link between doctrinal confusion and the threats to which the defense is now exposed. This article does not seek to comprehensively analyze the insanity defense. Expressly excluded from discussion are (1) the proper standard for exculpation on the ground of mental * B.S., Temple University, 1958; J.D., Rutgers University School of Law, 1959; Professor of Law, Marquette University Law School. The invaluable and exceptionally able assistance of Ms. Susan Bates, J.D., Mar- quette, 1983, in the preparation and writing of this article is hereby gratefully acknowledged. 1. See, e.g., Note, Rulesfor an Exceptional Class: The Commitment andRelease of Persons Acquitted of Violent Offenses By Reason of Insanity, 57 N.Y.U. L. REv. 281, 283 n.12 (1982) (capsulizing the threat in light of recent events: two states enacting legislation abolishing the defense, seven others adopting the "guilty but mentally ill" verdict and the outcry over the acquittal and possible release of John W. Hinckley, Jr., who attempted to assassinate President Reagan). 2. See, e.g., Fingarette, Disabilitiesof Mind and CriminalResponsibilify- A Uni- tary Doctrine, 76 COLuM. L. Rav. 236 (1976); Hogan, Crime,Punishment and Respon- sibility, 24 VILL. L. REV. 690 (1979); Lyons, The Insanity Defense, 9 U. TOL. L. Rv. 31 (1977); Robinson, A BrieHistory ofDistinctions in Criminal Culpability, 31 HAS- TINGS L.J. 815 (1980); Spring, The End ofInsanity, 19 WASHBURN L.J. 23 (1979); Comment, Mens Rea andInsanity, 28 ME. L. REv. 500 (1977). MARQ UETTE LA4W REVIEW [Vol. 67:1 abnormality; 3 (2) placement of burdens of proof;4 (3) miti- gating pleas such as "diminished capacity";5 (4) evidentiary questions regarding the scope of expert testimony by mental health professionals;6 (5) the esoteric distinction between crimes requiring only "general intent" and those necessitat- ing "specific intent"; 7 (6) the problems of disposition of those acquitted by reason of insanity;" (7) the various proposals to abolish or modify the insanity defense; and (8) the constitu- tional problems presented by the defense.9 These issues have been extensively analyzed in other articles. The focus of this article is the confusion, or lack of agree- ment, as to the meaning of key terms and concepts in the criminal law and their interrelationships in the context of the insanity defense. 3. See infra text accompanying notes 81-124 for a discussion of the development of the insanity standard in Wisconsin. 4. For discussion in this area, see H. WEIHOFEN, MENTAL DISORDER AS A CRIMI- NAL DEFENSE at 212-13 (1954); Eule, The Presumption of Sanity: Burstingthe Bubble, 25 U.C.L.A. L. Rv. 637 (1978); Gallivan, Insanity, Bifurcaion and Due Process - Can Values Survive Doctrine, 13 LAND & WATER L. REV. 515 (1978); Note, Constitu- tional Limitations on Allocating the Burden of Proof of Insanity to the Defendant in Murder Cases, 56 B.U.L. REv. 499 (1976); Annot., 17 A.L.R.3d 146 (1968). 5. See infra text accompanying notes 125-35 for a discussion of diminished ca- pacity in Wisconsin. The insanity defense deals with diminished responsibility rather than nonresponsibility but remains an all or nothing categorical classification. Ar- guably, so-called "diminished capacity" is an attempt to take into account degrees of diminution of responsibility. For a general discussion of diminished capacity, see Arenella, The Diminished Capacity and DiminishedResponsibility Defenses: Two Chil- dren of a Doomed Marriage,77 COLUM. L. REV. 827 (1977); Diamond, Criminal Re- sponsibility of the Mentally Ill, 14 STAN. L. REv. 59 (1961); Lewin, Psychiatric Evidence in Criminal Casesfor Purposes Other than the Defense of Insanity, 26 SYRA- CUSE L. REv. 1051 (1975); Note, CriminalLaw - FirstDegree Murder-Evidence of Diminished Capacity Inadmissibleto Show Lack of Intent, 1976 Wis. L. REv. 623. 6. For discussion of expert testimony in this area, see K. MENNINGER, THE CRIME OF PUNISHMENT 132-40 (1968); Bonnie & Slobogin, The Role ofMentalHealth Professionals in the CriminalProcess: The Casefor Informed Speculation, 66 VA. L. REv. 427 (1980); Huckabee, Resolving the Problem of Dominance of Psychiatristsin CriminalResponsibility Decisions: A4 Proposal, 27 Sw. L.J. 790 (1973); Meyers, The PsychiatricDetermination of Legal Intent, 10 J. FORENSIC Sc. 347 (1965). 7. For analysis of this distinction, see Comment, Rethinking the Spec~ic-General Intent Doctrine in California Criminal Law, 63 CALIF. L. REv. 1352 (1975). 8. For a discussion of this area, see Note, supra note 1. See also Spring, The Insanity Defense in a Public Needs Perspective, 1979 DET. C.L. REv. 603; Note, Com- mitment Following an Insanity Acquittal, 94 HARv. L. REv. 605 (1981). 9. For an analysis of these problems, see Note, supra note 1, at 284. 1983] INSANITY DEFENSE II. THE INSANITY DEFENSE: ITS SIGNIFICANCE IN ANGLO AMERICAN LAW The basic principle of criminal law has been aptly gener- alized: "[The harm forbidden in a penal law must be im- puted to any normal adult who voluntarily commits it with criminal intent, and such a person must be subjected to the legally prescribed punishment."10 This principle is anchored in the concept of "individual responsibility," which sub- sumes the modifiers "normal," "voluntary" and "criminal." The notion of criminal responsibility proceeds from the as- sumption that normal adults freely exercise choices over courses of action. It is assumed that they have the capacity to purposefully select their conduct and therefore should be held accountable for it. Thus, the rule of responsibility is a necessary condition to criminal liability. It follows from this that there is a "single, universal defense of non-responsibil- ity.' 111 The defense of insanity is but one evidentiary means of raising it. If an individual lacks the capacity to recognize, to appreciate or to control the nature of the choices made, the assumption of "free exercise" of will'2 is inoperative and he cannot be legally accountable for his acts. To punish one who, by hypothesis, could not have done otherwise would be unjust, inhumane, and ineffective. 3 In sum, this is the in- sanity defense. However, it is said that "the insanity defense is raised so rarely as to make questionable assigning it an important role in the criminal law."' 14 Unfortunately, the frequency of its use, or of its success, misses the point. 15 As Herbert Packer 10. J. HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 18 (2d ed. 1960). 11. Bleechmore, The Denial of Responsibility as a General Defense, 23 ALA. L. REV. 237, 248 (1971); accord Spring, supra note 8. 12. Free exercise of will refers to the assumption that normal adults act freely and that whenever the will operates at all, it is possible for a person to will otherwise. H. FINGARETTE, THE MEANING OF CRIMINAL INSANITY 69-84 (1972). 13. J. FEINBERO, DOING AND DESERVING: ESSAYS IN THE THEORY OF RESPON- SIBILITY 55 (1970). Accord Dubin, Mens Rea Reconsidered-,A Pleafor a Due Process Concept of CriminalResponsibility, 18 STAN. L. REV. 322, 330 (1966). For additional discussion see H. FINGARETTE, supra note 12; A. GOLDSTEIN, THE INSANITY DE- FENSE (1967); Kadish, The Decline of Innocence, 26 CAMBRIDGE L.J. 273 (1968); see also MODEL PENAL CODE § 4.01, comment 156 (Tent. Draft No. 4, 1955). 14. A. GOLDSTEIN, supra note 13, at 167. 15. See, e.g., Fullin, The Insanity Defense: Ready for Refonn, WIS. B. BULL., Dec. 1982, at 13 ("A 1978 study showed that of more than 2 million criminal prosecu- MARQUETTE LA W REVIEW [Vol. 67:1 has said: We must put up with the bother of the insanity defense because to exclude it is to deprive the criminal law of its chief paradigm of free will . [It] operates as if human beings have free choice. This contingent and instrumental posit of freedom is what is crucially at stake in the insanity defense. 16 If the defense were abolished or substantially modified, a primary symbol of personal responsibility, perhaps impera- tive in creating law-abiding behavior, would also be dimin- ished. Also, the basic assumptions regarding responsibility and freedom, upon which the whole of the criminal law is constructed, 17 would necessarily be altered. An evolutionary process begun before the thirteenth century 18 which devel- oped as a doctrine of personal culpability or blameworthi- ness, 19 would be halted. Seven centuries of adherence to this tions, only about 1,600 defendants were acquitted on the basis of insanity. In Wiscon- sin there are only about 50 successful insanity pleas each year out of approximately 15,000 felony prosecutions."); see also NATIONAL COMMISSION ON THE INSANITY DE- FENSE, MYTHS AND REALITIES (1983) [hereinafter cited as MYTHS AND REALITIES].
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